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2008

Supreme Court accepts eight new cases

Madison, Wisconsin -
May 21, 2008

The Wisconsin Supreme Court has voted to accept eight new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals opinions/certification memos available online for the newly accepted cases are hyperlinked.

Some background: The circuit court removed Dhosi Ndina’s disruptive family members from the courtroom during a portion of his trial on charges of first-degree recklessly endangering safety. Ndina had allegedly stabbed his nephew in the back at a family gathering in November 2002.

The trial court had entered a sequestration order and instructed the individuals involved in the disruption to remain silent. Disturbances recurred later in the trial, and the trial court ordered the exclusion of all family members except the mother. The defendant did not object to the exclusion or dispute the court’s observations.

The trial court concluded that the exclusion of disruptive family members did violate the defendant’s right to a public trial. The Court of Appeals concluded that the only context in which the defendant’s claim of a violation of his constitutional right to a public trial could be considered was in an ineffective assistance of counsel claim.

A decision by the Supreme Court could determine what kind of showing is necessary to establish a waiver of the fundamental right to a public trial. From Milwaukee County.

Some background: In 2002, Elizabeth Callejas De La Trinidad and Marisol Aguilar-Torres drowned while at a picnic at Halter Wildlife, a hunting club in Pleasant Prairie. The plaintiffs, the girls’ parents and the administrators of their estates, sued Halter, its insurance carrier, and the on-duty lifeguard.

The defendants moved for summary judgment, claiming recreational immunity. The circuit court granted the motion. The plaintiffs appealed, and the Court of Appeals affirmed.

The Court of Appeals said the only issue presented was whether Halter was a non-profit organization as defined in § 895.52 (1) (c).

The Court of Appeals noted that Halter’s articles of incorporation identify it as a non-profit corporation, but the plaintiffs argue it is not because it was organized under statutes that control “for profit” corporations, and it has shareholders.

In asking the Supreme Court to review the case, the plaintiffs argue the essential characteristic of non-profits is that they cannot distribute their profits or net earnings to their directors, officers or members. They contend money raised from holding picnics had the effect of reducing dues for Halter’s members.

The defendants argue the case does not present a question of corporate organization – only whether Halter is a non-profit organization under the recreational immunity statute. From Kenosha County.

2007AP1638 Tensfeldt v. Haberman
This certification from the District IV Court of Appeals involves questions about estate planning services provided by two attorneys and their law firms.

Some background: Robert and Ruth Tensfeldt, who had three adult children, divorced in Wisconsin in 1974. The divorce judgment incorporated a stipulation in which Robert agreed to execute and keep in effect a will “leaving not less than two-thirds of his net estate outright to the three adult children of the parties, or to their heirs by right of representation.”

One attorney is alleged to have negligently failed to provide the client relevant advice about the effect of Florida law on estate plans, while the other attorney is alleged to have aided and abetted the client in violating a stipulated provision of a Wisconsin divorce judgment requiring that he execute and maintain a will in his adult children’s favor.

The Court of Appeals asks the Supreme Court to examine, among other things, whether a trial court has authority to incorporate into a divorce judgment a stipulation requiring a party to maintain a will in favor of an adult child.

If the trial court has such authority, the Court of Appeals asks if such a stipulation is then enforceable only as a judgment or as a contract to make a will, or both. Also, should an attorney who advises the client that the will could potentially be challenged as a breach of contract, be excused from any third party liability under either a qualified immunity theory or some other good faith advice defense?

A decision by the Supreme Court could clarify issues not readily resolved by existing law. From Dane County.

2006AP803 Christensen v. Sullivan
This prisoner-litigation case involves a class action complaint filed on behalf of Milwaukee County jail inmates alleging constitutional violations by Milwaukee County and the Milwaukee County Sheriff based upon conditions at the jail.

Some background: In July 1996, the Legal Aid Society of Milwaukee, Inc. filed a class-action complaint on behalf of all persons then or in the future confined in the Milwaukee County jail. The action claimed overcrowded conditions led to the infliction of needless pain and suffering and creating a threat to the inmates’ mental and physical well being.

The parties resolved their differences in a consent decree, which was approved by the circuit court in May 2001. In the fall of 2004, the plaintiffs moved for enforcement of the consent decree, and sought a finding of contempt and damages for breach of the terms of the consent decree (contractual damages).

The circuit court found intentional contempt, but concluded that remedial sanctions were not available because the violations ended in May 2004, and there was no continuing contempt. The circuit court concluded that damages based on breach of contract were not available because the 2001 complaint did not request money damages, the relief sought applied to conditions for inmates and not damages, and the consent decree did not indicate either party contemplated money damages would be available in the event of a breach.

The Court of Appeals reversed. It ruled that under Frisch v. Henrichs, 2007 WI 102, 304 Wis. 2d 1, 736 N.W.2d 85, which was decided while the appeal in this matter was pending, the remedy for sanctions for continuing contempt under Wis. Stat. § 785.04 applied. Therefore, it remanded for a determination as to the amount of the sanction.

Milwaukee County and the Milwaukee County Sheriff (the county) have asked the Supreme Court to review the interaction between statutes and case law applied to this case. A decision could have statewide impact.

The Wisconsin Counties Association has filed an amicus brief, contending that the Court of Appeals’ decision creates precedent with unforeseen consequences for parties who settle their disputed by entering into a consent decree. From Milwaukee County.

2006AP1886 Noffke v. Bakke
This personal injury action arises from an accident that occurred during cheerleading practice. While performing a stunt, cheerleader Brittany Noffke fell and hit her head on a tile floor. She sued her 16-year-old spotter, Kevin Bakke, the school district, and various insurers.

The circuit court entered a summary judgment dismissing her complaint, ruling that the spotter was immune from liability under Wis. Stat. § 895.525(4m) as a co-participant in a team sport. It further determined that there were no exceptions to the rule of government immunity under Wis. Stat. § 893.80(4), so that the school district also was immune from liability.

The Court of Appeals affirmed the dismissal against the school district but reversed the dismissal against Bakke. It held that the facts were undisputed that Noffke and the spotter were not participating in a sport between opponents within the meaning of § 895.525(4m). Accordingly, it determined that this section did not bar Noffke's negligence claim against Bakke.

Both Noffke and Bakke filed petitions for review. Noffke asks the Supreme Court to review if a cheerleading coach is entitled to discretionary immunity when she negligently directs inexperienced cheerleaders to attempt a dangerous stunt without the spotting and matting required by rules that govern the coach's duty.

2006AP2599 Phelps v. Physicians Ins. Co. of Wis.
This medical malpractice case, which is before the Supreme Court for a second time, arises out of the 1998 death of infant Adam Phelps at St. Joseph's Hospital. Adam died due to the negligence of physician Matthew Lindemann, a first-year unlicensed resident employed by the Medical College of Wisconsin Affiliated Hospitals (MCWAH). The cause of death was a combination of asphyxia due to cord entrapment and placental abruption, which impaired oxygen supply.

This case has a lengthy history dating from the bench trial in 2003, an appeal, and review by the Supreme Court. In Phelps v. Physicians Ins. Co., of Wisconsin, 2005 WI 85, ¶4, 282 Wis. 2d 69, 681 N.W.2d 571, the Supreme Court remanded “the matter to the circuit court for a determination of whether Lindemann was a “borrowed employee” of St. Joseph’s Hospital and therefore entitled to the cap protection as an “employee” of a health care provider under Wis. Stat. § 893.55(4)(b)

Following remand, the circuit court ruled that Lindemann was a "borrowed employee" of St. Joseph's. It also ordered that Gregory Phelps was entitled to the trial court's award of $200,000 emotional distress bystander damages due to Adam's injuries and death caused by Lindemann's and St. Joseph's negligence.

The Court of Appeals affirmed in part and reversed in part. It reversed the circuit court’s determination with regard to Lindemann’s “borrowed employee” status. Because it held Lindemann was not a “borrowed employee” of a health care provider, the Court of Appeals determined the Wis. Stat. Ch. 655 caps were irrelevant and declined to address whether the caps would prevent Gregory from obtaining the damages awarded for his emotional distress claim. It also noted the scope of the remand was limited to the "borrowed employee" issue and declined to address the validity of Gregory's emotional distress bystander award.

Physicians Insurance Company of Wisconsin and Lindemann (collectively, "PIC") now challenge the Court of Appeals’ rulings on several fronts, including whether case law precludes the award for emotional distress bystander damages to Gregory. PIC also asks the Supreme Court if rulings in previous cases apply only if the negligence which caused the death resulted from the acts or omissions of an individual who is a licensed "health care provider" or an employee of an authorized "health care provider."

Finally, PIC asks if it was appropriate for the Court of Appeals to make its own findings of fact, giving no deference to the circuit court's fact findings on remand, because the circuit court relied solely on the record and took no new evidence on remand. From Milwaukee County.

2006AP2662 Lisowski v. Hastings Mutual Ins. Co.
This case, which was previously denied certification, examines underinsured motorist (UIM) coverage and could help resolve possible conflicts between Court of Appeals’ decisions on the topic.

Some background: Jonathan Lisowski, a passenger in his father's car, was injured in an auto accident caused by his friend – who was driving drunk. Several people were killed; Lisowski was injured. Lisowski settled his claim against the driver. He then sued Hastings claiming UIM coverage under the "Wisconsin Underinsured Motorists Coverage" endorsement to a business auto policy his father had purchased.

The policy identified one of the vehicles Lisowski's father owned as a "covered auto," but not the car in which Lisowski was injured. The declarations limited all coverage, including UIM coverage, to "covered autos." Because the stated purpose of the UIM endorsement was to modify the policy, however, the issue became whether the endorsement extended UIM coverage to injuries from the use of vehicles that were not identified as "covered autos."

Lisowski contends that a circuit court judge and the Court of Appeals have recognized the reasonableness of his arguments. He challenges the interpretation of language in the UIM coverage agreement and how that language may apply in this case.

The trial court found Lisowski's arguments persuasive but was bound by Crandall ex rel. Johnson v. Society Insurance, which said that the introductory language, "for a covered auto" in the UIM endorsement required Lisowski to be an occupant of "a covered auto" to trigger UIM coverage.

On appeal, Lisowski argued the endorsement extended UIM coverage to injuries from the use of vehicles that were not identified in the policy as "covered autos." The Court of Appeals agreed but reached the same determination as the circuit court: it was bound by the holding in Crandall which ruled otherwise.

Hastings opposes review, arguing this case is fact driven and that all the courts involved properly held that there was no coverage pursuant to the Crandall decision. It contends that the vehicle was not a covered vehicle under the terms of the contract, which is confirmed by the declarations page of Hasting’s policy. Hastings says that this court properly denied certification from the court of appeals and it would inappropriate to accept this case now. From Buffalo County.

2007AP587 Loth v. City of Milwaukee
This breach-of-contract claim presents the question whether a city or county may by resolution or ordinance alter the health benefits that it had previously promised for those who had accumulated sufficient work time but had not yet reached the age of retirement.

This case involves the level and cost of health coverage benefits available to a City of Milwaukee retiree.

Some background: Albert Loth was hired as an accountant with the city of Milwaukee in 1984. When he was hired, Loth claims he was told he would have “free” health care after retirement.

However, the city contends that the city’s employment handbook contains a provision that states that the “city will have the right to establish such procedures as it may deem necessary to restrict excessive costs in application of the benefits provided.”

In 1973, the city adopted a resolution outlining no-cost retiree health-care benefits under a “basic plan” to certain retirees between the ages of 55 and 65, based on years of service.

In July 2002, due to the rising cost of health insurance, the city adopted a new resolution to require retirees from management positions with 15 years of creditable service to pay the same portion of premiums paid by active management employees.

In later years, the city added other plans, including a Health Maintenance Organization plan with some restrictions on choice of physicians but no employee premium cost. Other plans were offered that required employee contributions toward the premium.

When the 2002 resolution was passed and at the time when it became effective, Loth had been a city employee for more than 15 years. However, he was not age 60 as of either date; he turned 60 on April 12, 2005 and retired on April 23, 2005.

After his retirement, the city continued to deduct the same health insurance premium as it had been deducting while he was an active employee. Loth filed suit, alleging claims for breach of contract, contending he was entitled to coverage under any city-offered health plan at no cost to him. The circuit court granted summary judgment to the city, concluding Loth had not developed a vested right in no-cost health insurance at the time the city adopted the 2002 resolution.

The Court of Appeals reversed, citing case law that established that an employer’s unilaterally adopted pension plan can be an offer for a unilateral contract, which the employee accepts and makes binding by performing the work requested of the employer.

The Court of Appeals stated that it had allowed employers to change the wages/benefits of their workers so long as the change was prospective only and the employee is informed of the change before beginning to perform the work.

A decision by the Supreme Court could clarify law in this area. Although this case involves a certain retiree, the case could have implication for public employers and employees statewide. From Milwaukee County.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court.